EnergySolutions Loses|Ruling on Foreign Waste

(CN) - A regional committee governing low-level radioactive waste disposal has the authority to ban EnergySolutions from importing foreign waste, the 10th Circuit ruled.

The federal appeals court in Denver reversed a decision by U.S. District Judge Ted Stewart, finding that Stewart should have considered a congressionally approved compact.

EnergySolutions, which runs a facility in Clive, Utah, for the disposal of low-level radioactive waste (LLRW) sued the Northwest Interstate Compact on Low-Level Radioactive Waste Management when the group's members denied permission to import and dispose of low-level waste from a decommissioned reactor in Italy.

The state of Utah and the Rocky Mountain Low-Level Radioactive Waste Compact intervened as defendants for the compact, which governs Alaska, Hawaii, Idaho, Montana, Oregon, Utah, Washington and Wyoming.

Judge Stewart ruled that the Northwest Compact does not have legal authority over the Clive facility, but did not consider EnergySolutions' other claims: that federal law preempts the decision to exclude foreign waste, and that the compact's decision violated the dormant Commerce Clause.

Because an older facility in Richland, Wash., is the regional disposal facility in the Northwest Compact, EnergySolutions argued that its Clive facility is exempt from the compact's authority.

Writing for the three-judge panel, Judge Timothy Tymkovich said the Richland facility's designation as a regional facility means it should accept waste generated within the region, while the Clive facility would accept out-of-region waste as approved by the committee.

Utah issued the necessary licenses to allow the EnergySolutions facility in Clive to begin disposal of radioactive waste on the condition that EnergySolutions gets permission from the Northwest Committee before disposing of any radioactive waste generated outside of the region, the court ruled.

"After its opening, the Clive facility on a few occasions sought and received permission from the Northwest Committee to accept out-of-region LLRW," Tymkovich wrote. "On other occasions, the Northwest Committee denied permission for out-of-region waste, and EnergySolutions accepted this determination"

The Northwest Committee voted unanimously, "facing political opposition from Utah," to deny permission to import waste from the decommissioned plant in Italy, the ruling states.

Member states have veto power over any import decisions of the Northwest Committee under the compact, Tymkovich added.

"The proper place to begin this analysis is in the compact itself," Tymkovich wrote. "Congressional approval of the Northwest Compact, through the Consent Act, transformed it from mere agreement into federal law. Therefore, we treat the Northwest Compact like any other federal statute, and interpret it accordingly."

Judge Stewart had looked to the Low-Level Radioactive Waste Policy Act of 1980 and the Low-Level Radioactive Waste Policy Amendments Act of 1985, but Tymkovich said Stewart should not have considered the 1980 Act at all, since it was struck out entirely and replaced by the 1985 Act.

"EnergySolutions' preferred interpretation effectively eliminates through misdirection the exclusionary authority of the compact over the Clive Facility," the appellate court wrote. "In short, the Northwest Committee has compact authority to exclude the importation of waste from Italy, and any other waste generated outside the Northwest Compact region."

The 10th Circuit said Utah conditioned the license it granted to EnergySolutions on compliance with the authority of the Northwest Compact.

"It is unlikely Utah would have agreed to issue the necessary licenses if it was powerless to control the flow of waste past its borders," Tymkovich wrote.

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